What is Guardianship and Do I Need Legal Counsel?
As adults in Ohio, we enjoy many freedoms to live and do mostly as we please, within the limits of the law. But with that freedom come many responsibilities, too – taking care of our affairs and business and looking after ourselves. And for most of us, that is simply part and parcel of everyday life. But sadly, there are times that these day-to-day tasks can simply become too much for individuals to do for themselves.
Whether someone is born with developmental disabilities and will never be in a position to take full control of their lives, or someone suffers a debilitating injury or medical condition like a stroke or extreme car accident that robs them of their independence, or old age slowly takes away someone’s physical and mental strength, we can find ourselves needing to have control over someone else’s affairs for them.
It can start off quite informally, but there comes a time when we may need the law to give us power to make essential decisions on behalf of a loved one – and it is critical this is done correctly and legally to protect both the person concerned and the one seeking to do their best. In Ohio, this is called guardianship and takes effect when an adult is unable to make financial, medical and other life decisions for themselves. It is not the same as a power of attorney, and if suitable powers are already in place giving someone the legal right to make decisions for another, then a guardianship may not be needed at all – all the more reason to seek legal advice.
But any documentation giving power of attorney may well envisage a guardianship being needed in the future and can nominate individuals for that role, which probate court will give preference to provided they meet the legal requirements for the role.
There are specific legal steps that must be taken to create guardianship powers, and there are two distinct types of guardian in Ohio – though both types can be embodied in one person or two different people. A guardian of the estate has the power and the responsibility to make decisions on the incompetent person’s money and property, handling bills, banking, taxes and similar. A guardian of the person makes decisions over health and wellbeing such as medical decisions and living situations.
Guardianship is awarded by the probate court, which follows a clear and specific application and hearing process. For guardian of the person, any adult can apply, but for guardianship of the estate, the person must live in Ohio. The process demands information on both the proposed guardian, the ward, the ward’s family, background checks and a bond being put in place. The ward and their next of kin are also entitled to know about the application and object, though in many cases it is family and next of kin applying for the power for a loved one.
The proposed ward is usually visited by a court representative to serve notice and document any necessary observations, as well as a written evaluation to be undertaken by a licensed physician or clinical psychologist.
After these steps, the court will hold a hearing and consider all submissions, which can include testimony at the hearing by the ward and next of kin. If the court believes the proposed ward to be incompetent then it issues an order, and if it also agrees the applicant is suitable to hold the guardianship, they will be formally appointed as such. If the court does not accept the proposed guardian, it can appoint someone else – a different relative, a friend or even an unrelated third party such as an attorney.
The reason this process is best handled through a lawyer is that it literally strips the individual of any rights to make decisions for themselves – the guardian assumes full legal control, just as a parent has full authority over a child. Due to the impact of this, it is worth noting guardianships can be created to be temporary or can be terminated if there are reasons to believe the ward may regain appropriate cognitive powers, such as recovering after an accident.
In Ohio, it is also possible to hold a position called a conservatorship which is distinct from a guardianship, though in some other states the terms are interchanged. In Ohio, a conservatorship is ideal for when the ward is mentally competent to make decisions but physically needs assistance with financial and medical decisions. Practically the effects are similar, but the ward retains ultimate authority and can terminate the relationship at any time – they effectively delegate powers to the conservator.
Because the impact of taking on guardianship can be so significant, for both the ward and the guardian – and any other relatives – it is strongly advised to seek legal advice to protect everyone concerned.
Here at RM Nelson law we always work with our clients to protect their best interests, and we would be happy to speak with you to advise you on the best solutions for your needs. Call us today to make an appointment and put your mind at rest.
